NH (Female BOCs, exceptionality, Art 8, para 317))
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hodge OBE, President |
| Judgment Date | 26 October 2006 |
| Neutral Citation | [2006] UKAIT 85 |
| Date | 26 October 2006 |
| Court | Asylum and Immigration Tribunal |
[2006] UKAIT 85
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr Justice Hodge OBE, President
Senior Immigration Judge Batiste
For the 1 st Appellant: Manjit S Gill QC instructed by Oliver Abey & Co
For the 2 nd Appellant: Manjit S Gill QC instructed by Oliver Abey & Co
For the Respondent: Elizabeth Laing instructed by Treasury Solicitor
NH (Female BOCs, exceptionality, Art 8, para 317) British Overseas Citizens
Female British Overseas Citizens obtained UK citizenship only from 1 April 2003. Section 12 Nationality, Immigration and Asylum Act 2002 was passed to” right an historical wrong, which is something which should be taken into account when making the Huang assessment..
These two appeals have been heard together because they raise common points as to the approach to be taken to Rule 317 (i) (f) of the Immigration Rules (HC395 as amended) and Article 8 of the European Convention on Human Rights. The two Appellants (called for brevity H and V in this determination) have wholly separate claims, have no connection with each other, and are treated, separately, where appropriate, within this determination. But the same issues arise in both cases.
Each of the mothers of each Appellant has acted as the sponsor for her son. Both are women with East African connections who have been registered as British citizens under Section 4B British Nationality Act 1981. That section was inserted by Section 12 Nationality, Immigration and Asylum Act 2002 with effect from 30 th April 2003. Each Appellant claims to be a dependent child of his mother but each was over the age of 18 at the date of application. They were both refused entry clearance. They each appealed. Both Appellants were successful in their appeals; in the case of H to the Adjudicator, and in the case of V to an Immigration Judge.
The appeal in H was promulgated on 6 th January 2005. The Adjudicator (Mr M R Oliver) allowed the appeal under Article 8 of the ECHR. The Respondent (represented throughout in both cases by the Secretary of State and so referred to in this determination) applied for permission to appeal in time. This was granted on 18 th May 2005. The appeal had therefore been pending immediately before 4 th April 2005. Under Rule 62, Asylum and Immigration Tribunal (Procedure) Rules 2005 ( SI 2005 No.230) the appeal falls to be reconsidered by this Tribunal in accordance with that rule. Rule 62(7) provides that in these circumstances the reconsideration is limited to the grounds upon which the former Immigration Appeal Tribunal granted permission to appeal.
In V the appeal was promulgated on 24 th October 2005. Immigration Judge Lingan allowed the appeal in respect of both the Immigration Rules and Article 8 of the ECHR. The Secretary of State applied for reconsideration and that was ordered on 8 th November 2005. The case of V came on for hearing on 14 th February 2006. The Deputy President who heard the case adjourned it and ordered it to be linked to H.
The Secretary of State argues there are three issues which arise in these cases:
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a) Whether the determination of the judicial officers which the Secretary of State seeks to challenge in these cases contain material errors of law;
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b) Whether the Appellants can rely on Article 8 of the ECHR if they cannot satisfy paragraph 317 of the Immigration Rules;
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c) Whether there is any merit in an argument based on historical injustice and/or discrimination and whether the applicants can pursue claims based on the shortcomings of the pre-2002 policy or rules.
On behalf of the Appellants it is submitted that:
Having regard to the circumstances of each case and to the history of how the Appellants came to be in their current position and given governmental policies and statements, the Adjudicator or Immigration Judge in each case was entitled to allow the appeals whether under Rule 317 (i) (f) or under Article 8 ECHR or both so no material error of law was committed by either judicial officer.
The Appellant's maternal grandfather was registered in Kenya as a British subject and a citizen of the United Kingdom and Colonies in 195The Appellant's mother, the sponsor, was born in Nairobi on 14 th October 1959 and was then a citizen of the United Kingdom and Colonies (). The sponsor married the Appellant's father an Indian national in 1975. They have four sons. The oldest born in 1976 now lives in the Seychelles; the second son born in 1978 lives in Muscat; the third son born in 1980 lives in India. The Appellant, their fourth son, was born on 6 th May 1985.
On 27 th July 1998 the Appellant's mother obtained her British overseas citizen passport. In August 2003 the sponsor applied for a British passport. She was registered as a British citizen with full rights on 9 th September 2003. Her passport was available in October of that year. She returned to India to support the entry clearance application of the Appellant and her husband, his father. On 5 th May 2004, the Appellant and his father, together with the sponsor, were interviewed by the entry clearance officer in Mumbai. Entry clearance was refused for both the Appellant and his father.
On 17 th May 2004 the sponsor returned to the United Kingdom. A notice of appeal was filed for both the Appellant and his father on 27 th May 2004. The appeals were reviewed. The Appellant's father was granted a visa to settle in the United Kingdom as a dependent spouse of the Appellant's mother on 23 rd October 2004. The review of the Appellant's appeal changed nothing and his appeal was heard before an Adjudicator in December 2004.
The sponsor of V was born in India on 16 th October 1955. Her maternal grandfather, Mr H K Ruda, had registered as a British citizen of the United Kingdom and Colonies on 25 th March 1953 in Kenya. Mrs V, qualified as a by reason of Section 5 (1) British Nationality Act 1948.
The sponsor married the Appellant's father on 24 th July 1978. She had three sons born in 1981, 1983 and 1984. They all reside in Nairobi, Kenya. The Appellant, her fourth son, was born on 15 th August 1985. He was therefore at the time his appeal was lodged aged 19 years 2 months. The sponsor entered the United Kingdom as a visitor in April 2003. She shortly thereafter applied for a British passport which was issued to her on 19 th August 2003 and gave her full citizenship rights.. The Appellant applied for entry clearance as did his father, the sponsor's spouse, on 8 th October 2004.
The Appellant was interviewed on 14 th December 2004. His entry clearance was refused but the Appellant's father was granted entry clearance. The notice of appeal was filed on 30 th December 2004. The Appellant's father had been granted a visa by the entry clearance officer and settled in the UK with the sponsor in April 2005. The hearing of the appeal took place on 11 th October 2005 and the Immigration Judge allowed the appeal in respect of both the Immigration Rules and human rights. Thereafter reconsideration was ordered as indicated above.
Each of the sponsors claim to British nationality arose from the British Nationality Act 1948 which was effective from 1 st January 1950. They each, when born, became citizens of the United Kingdom and Colonies by birth (). Their rights to settle in the UK were restricted by the Commonwealth Immigration Act 1968. The Immigration Act 1971 came into force on 1 st January 1973. It introduced the concept of a right of abode. On 14 th December 1973 the European Commission on Human Rights decided the East African Asians case. It decided that the Commonwealth Immigration Act 1968 was racially discriminatory. The UK Government entered into a friendly settlement. A Special Quota Voucher Scheme (SQV Scheme) was introduced to benefit citizens of the United Kingdom and Colonies whose rights had been restricted by the 1968 Act. But it could not assist either of the two sponsors since married women who were not heads of households were excluded from the Scheme.
The Special Quota Voucher Scheme had been introduced from 1968 to assist both s and subsequently British Overseas Citizens (BOCs). Each of the two sponsors had qualified as BOCs under the provisions of the British Nationality Act 1981. The SQV Scheme was outside the Immigration Rules. It allowed persons latterly BOCs who had no other citizenship and were under pressure to leave their country of residence and had nowhere else to go to settle in the UK. The numbers entitled to come to the UK were limited by quota rules. From 1975, 5,000 vouchers per year were issued. Waiting lists were always long. By 1987 those applying under the quota were expected to wait more than five years (Macdonald Immigration Law and Practice 1 st Edition 1983 pg.248 and 2 nd Edition 1987 pg.286).
Importantly the SQV Scheme was only available to heads of household and to their dependents. Such heads of household were defined for the purpose of the scheme as “ men who have reached their 18 th birthday; women over 18 who [are] … single, widowed, divorced [or] married to a man who is incapable of fulfilling the role of head of household for medical reasons, e.g. severely physically or mentally handicapped. (This includes a woman whose marriage may have been not valid in English law but which exists in fact, and a woman who is living in a permanent association with a man)”. The scheme was therefore applied in a manner which discriminated between men and women on the grounds of marital status. The scheme was abolished on 5 th March 2002. There were approximately 500 applications per year at that stage.
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